Tuesday, February 9, 2010

Ex Parte Contact: Back Room Lobbying Shouldn't Be Permitted

One of the more perplexing mysteries over the years I have practiced has been the debate about lobbying administrative bodies. I have always argued that such practices were unethical and should not be tolerated. However, it is true that there is precious little guidance in the context of local administrative decision-making. At the state level, there is a statute that forbids ex parte contact with administrative law judges or agency members. Tenn. Code Ann. § 4-5-304(c). There is no similar prohibition at the local level, unless the local government adopts one itself, something I have never seen in my practice.

A little over a year ago, the Attorney General was posed a question concerning this issue. The opinion does not involve zoning or planning but a similar administrative proceeding, in this instance, one which would be considered by the local legislative body (as in a PUD). The AG concludes that to permit ex parte contact with persons involved in an administrative proceeding would be a violation of procedural due process and strongly recommends against such contact. The AG opinion, #09-02, dated January 9, 2009 may be found here.

Because the city council would be acting in a quasi-judicial capacity at such a hearing, it would be required to comply with procedural due process requirements including the right to a fair hearing before an impartial tribunal. If city council members speak to a party to the proceeding or to affected representatives of an industry or an affected individual about the fee increase, while a challenge to the fee increase is pending, these communications will likely be considered ex parte communications by a court reviewing the decision of the city council. An ex parte communication is defined as a “generally prohibited communication between counsel and the court when the opposing counsel is not present.” Although this definition refers to communications to a court, reliance on ex parte communications by members of a decision-making body in quasi-judicial administrative hearing are also generally prohibited. The reason for this is that ex parte communications interfere with a party’s due process rights “to hear and comment on all of the evidence considered in a case.” Id. Courts have noted that ex parte communications can “shadow the impartiality, or at least the appearance of impartiality,” during a hearing and “may, in some circumstances, constitute a deprivation of due process of law.” [citations omitted]

Not all such communications of course are so prejudicial that the decision of the tribunal would be overturned. But surely this AG opinion, recognizing the impropriety of such conduct, is a fair warning to all hearing officials and boards that discussions with parties without the presence of other affected persons may serve to invalidate the proceedings. Ethically, I believe that attorneys simply should not be involved in such conversations. In the past, sheer fear of the tactics of opposing parties has driven some to make such contact, on the theory that the other side was doing it too. From my perspective, that's no excuse. It's not right. It shouldn't be done.

Before concluding, let me note that lobbying the local city council on a zoning change is entirely different. That's a legislative decision and those decisions can be lobbied. That just good old politics. But when the decision is akin to a court proceeding, such as for example, planned unit developments before a city council, no lobbying should be tolerated.